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Thursday, July 5, 2012

To Skin or to Trim? The Dangers of Boilerplate Language

In law school I can distinctly remember a legal case where everything hinged on where a "comma" was placed in a contract. A simple comma made the difference between what the parties (people) had promised (agreed to do) and what they did not.

Can you even begin to imagine the thousands of hours that lawyers spend writing agreements that are "ironclad" and that take into consideration just about any future happening? The use of certain specific words are also known as the "terms of art" and the commiserate commas, periods, and a host of grammatical nuances can turn a contract into a jail sentence.

SENTENCING IS THE FINAL CONSIDERATION

This comes into play in the area of criminal law as well. At the end of the criminal case there is a sentencing. At that sentencing there is an agreement, a form of a contract, called a CD, a conditional discharge OR a set of probation terms OR something in between the two. It could involve community service, taking a class, or even staying out of bars or trouble.

DEFINITIONS

Everything (all important words) requires a definition. How do we know if we are talking about the same thing if we cannot first agree on the terms (the definition). What do these words mean? What do they stand for?

THE SALMON BUY

I recently went in to buy some salmon. Kinda like scoring drugs, what do you want and what weight? I wanted the North Atlantic Salmon but I wanted it to be "cleaned" ie. ready to cook. I like eating fish but not cutting it up. I asked the guy to "trim" the fish. He thought I meant, get rid of any yucky (unusable) parts. So he answered me, "within the limits of what I can do?" I said, "what?" He cuts off the ends of the fish, slices me up 6oz. pieces, and bags it. I say I wanted it "trimmed"... he said "I did" but I say but it still has skin?

Oh he says, "you want it SKINNED NOT TRIMMED!" Skin versus trim, I wanted him to get rid of the fish skin. One word and all the difference between two things.

BOILERPLATE

Boilerplate refers to the common legal terms, words, and language that are used in many contracts. How much of any agreement is the boilerplate, and is all that boilerplate necessary? and is it all that applicable to your specific situation? Sometimes it is good to question and to challenge the language, and the terms. Can we modify? Will the DA allow us to modify? Will the Judge go along with the modifications?

I have found mistakes on many occasions. Sometimes the probation department or the Court uses the wrong boilerplate. Hey big surprise, there are things in here that don't apply. Reading is a big part of what a lawyer does, and writing is number two. Insure that what you are getting is what you have bargained for, and that requires the assurance of a review.

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My Practice Philosophy

I personally abhor pretense. Coming from Brooklyn, NY, you can't BS a BSer. As educated or as knowledgeable as I think I am (I have a wife to level me off) I believe everyone deserves respect.

"Question Authority:" I have always questioned authorities. To the dismay of my parents. I dislike unequal and/or unjust relationships (Afterall, I am a Libra). I was born under those scales of justice, and the balance they symbolize.

Authorities to Question and Challenge:

The Government, Law Enforcement, Insurance Companies.

I believe they all need to be kept in check.

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